Citation Nr: 0203509
Decision Date: 04/17/02 Archive Date: 04/26/02
DOCKET NO. 00-16 868 ) DATE
)
On appeal from the
Department of Veterans Affairs Regional Office in
Philadelphia, Pennsylvania
THE ISSUE
Entitlement to dependency and indemnity compensation under
38 U.S.C.A. § 1318.
REPRESENTATION
Appellant represented by: Robert F. Stranick, Attorney
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Brian J. Milmoe, Counsel
INTRODUCTION
The veteran served on active duty from November 1940 to June
1946. His death occurred in September 1985. The claim for
benefits herein under review was initiated by the veteran's
surviving spouse.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a rating decision entered in November
1998 by the Department of Veterans Affairs (VA) Regional
Office (RO) in Philadelphia, Pennsylvania, denying the
appellant's claim of entitlement to dependency and indemnity
compensation under the provisions of 38 U.S.C.A. § 1318.
Following the RO's receipt of a notice of disagreement from
the appellant, she was afforded an RO hearing, and subsequent
thereto, a statement of the case was issued to her and she
perfected her appeal by the submission of a VA Form 9, Appeal
to the Board of Veterans' Appeals. In her substantive
appeal, the appellant requested that she be afforded a Board
hearing in Washington, DC. Such a proceeding was scheduled
to occur in June 2002, but prior to its occurrence, the Board
was advised that the appellant had died in April 2001. A
certificate of death, thereafter provided to the Board,
indicated that the date of her death was April 21, 2001.
FINDING OF FACT
In June 2001, the Board was notified that the appellant had
died, although a copy of the certificate of death of the
appellant, specifically indicating the date of death to be
April 21, 2001, was not provided to the Board until April
2002.
CONCLUSION OF LAW
Because of the death of the appellant, the Board has no
jurisdiction to adjudicate the merits of this claim. 38
U.S.C.A. § 7104(a) (West Supp. 2001); 38 C.F.R. § 20.1302
(2001).
REASONS AND BASES FOR FINDING AND CONCLUSION
Unfortunately, the appellant died during the pendency of the
appeal. As a matter of law, claims of veterans or their
dependents do not survive their deaths. Zevalkink v. Brown,
102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Smith v. Brown, 10
Vet. App. 330, 333-34 (1997); Landicho v. Brown, 7 Vet. App.
42, 47 (1994). This appeal on the merits has become moot by
virtue of the death of the appellant and must be dismissed
for lack of jurisdiction. See 38 U.S.C.A. § 7104(a) (West
Supp. 2001); 38 C.F.R. § 20.1302 (2001).
In reaching this determination, the Board intimates no
opinion as to the merits of this appeal or to any derivative
claim brought by another survivor of the veteran. 38 C.F.R.
§ 20.1106 (2001).
ORDER
The appeal is dismissed.
Iris S.
Sherman
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.